Pete's Criminal Trial

[Demosthenes]

New filing 1/7/09

United States District Court
For the Eastern District of Michigan Southern Division

United States of America,
Plaintiff,
v.
Peter Hendrickson
Defendant.

Criminal No.08-CR-20585

Judge David M. Lawson

Motion for Notice from the Government Regarding 404(b) Evidence

MOTION FOR NOTICE FROM THE GOVERNMENT REGARDING 404(b) EVIDENCE

Defendant, Peter Hendrickson, by his attorney, Ellen Dennis, moves this Honorable Court,
pursuant to Fed. R. Evid. 404(b), to enter an Order requiring the government to provide notice of any evidence that it will seek to rely upon at trial which falls within the perimeters of Fed. R. Evid. 404(b), and in support states:

1. Defendant is charged in ten counts with filing false income tax return documents, in violation of 26 U.S.C. § 7206.
2. Mr. Hendrickson believes that the government may attempt to introduce other acts evidence in its case-in-chief pursuant to Rule 404(b).
3. Mr. Hendrickson also believes that unless the government's similar acts evidence is disclosed prior to trial he will be unduly prejudiced and his right to a fair trial undermined.
4. Under Fed. R. Evid. 404(b), the government must provide pretrial notice of any and all acts evidence it intends to use at trial. That notice must be sufficiently specific to permit pretrial resolution of admissibility questions and the government's duty to disclose is ongoing. See United States v. Barnes, 49 F.3d 1144, 1148-1149 (6th Cir. 1995). If the notice requirement is not met, the evidence is not admissible. Id.
5. Pretrial disclosure will assist this Court in making pretrial determinations on admissibility and would therefore avoid prejudice to Mr. Hendrickson, jury confusion and undue delay in the trial.
6. Pretrial disclosure is required by Fed. R. Evid. 404(b) upon request of defendant.

WHEREFORE, Defendant moves this Honorable Court to enter an order requiring the
government to provide specific and reasonable notice, in advance to trial, of any evidence it may intend to rely upon at trial pursuant to Fed. R. Evid. 404(b).
Respectfully submitted,
/s/Ellen Dennis (P-24400)
Law Office of Ellen Dennis
Attorney for Defendant Hendrickson
101 S. Ann Arbor St., Ste. 203A
Saline, Michigan 48176
Telephone: 734 944-5819
Dated: January 7, 2009

[Demosthenes]

The judge responds.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
v.
PETER HENDRICKSON,
Defendant.

Case Number 08-20585
Honorable David M. Lawson

ORDER DENYING MOTION FOR NOTICE FROM THE GOVERNMENT REGARDING 404(b) EVIDENCE

On January 7, 2009, the defendant, Peter Hendrickson, filed a motion requesting an order
from the Court requiring the government to provide notice as required by Fed. R. Evid. 404(b). In this District, motions filed in criminal cases must comply with E.D. Mich. LCrR 12.1(a), which incorporates the requirements of E.D. Mich. LR 7.1(a). E.D. Mich. LR 7.1(a) requires a movant to seek concurrence in the relief requested before filing a motion with this Court. If concurrence is obtained, the parties then may present a stipulated order to the Court. If concurrence is not obtained, Local Rule 7.1(a)(2) requires that the moving party state in the motion that “there was a conference between the attorneys . . . in which the movant explained the nature of the motion and its legal basis and requested but did not obtain concurrence in the relief sought [ ] or . . . despite reasonable efforts specified in the motion, the movant was unable to conduct a conference.” E.D. Mich. LR 7.1(a)(2).

Nowhere in the defendant’s motion does it state that a conference was conducted between
the attorneys to discuss the relief sought in the motion. In a motion of this type, a phone call usually resolves any issues. If counsel for the defendant made an effort to resolve the matter without seeking the aid of the Court, then that effort should have been explained in the motion. “It is not up to the Court to expend its energies when the parties have not sufficiently expended their own.” Hasbro, Inc. v. Serafino, 168 F.R.D. 99, 101 (D. Mass. 1996). The defendant’s motion will be denied.

Accordingly, it is ORDERED that the defendant’s motion for extension of time in which
to file motions [#14] is DENIED.

s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: January 9, 2009

[absdes96]

Demosthenes,

I cannot help be interested in seeing how this unfolds.

Obviously, I have no legal training and I know very little about court procedures or jurisdictional matters but....

If the Federal Rules of Evidence do not apply in this district court setting, would not a competent attorney in that area already know that?

Once again, I trying pick up on the nuances here, but is quoting the Federal Rules in support of the defendant's motion another attempt at stalling?

[Famspear]

I think Hendrickson's attorney was trying to obtain a court order requiring the government to notify the defense if the government intended to use evidence of Hendrickson's prior conviction. I guess the defense could also be trying to find out whether the prosecutor intends to use evidence of Hendrickson's involvement in his "losthorizons" web site or his "book," Cracking the Code. Perhaps the defense wants to argue that losthorizons and Cracking the Code are evidences of "other crimes, wrongs, or acts". (Obviously, the prior conviction would fall into that category.)

Rule 404(b) of the Federal Rules of Evidence provides:

(b) Other crimes, wrongs, or acts

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

(bolding added).

In its ruling, the Court is referring to this rule, and to various "local rules" of the Court.

EDIT: I would not take the defense motion as an attempt at stalling.

[Quixote]

Demosthenes,

I cannot help be interested in seeing how this unfolds.

Obviously, I have no legal training and I know very little about court procedures or jurisdictional matters but....

If the Federal Rules of Evidence do not apply in this district court setting, would not a competent attorney in that area already know that?

Once again, I trying pick up on the nuances here, but is quoting the Federal Rules in support of the defendant's motion another attempt at stalling?

"E.D. Mich. LCrR " is apparently short for Eastern District of Michigan Local Criminal Rules. The court's local rules require that the parties try to reach an agreement regarding procedural issues before asking the court to intervene. I imagine it saves a lot of time (if all the lawyers know and abide by the rule).

In this instance, it seems that a lot of time and paper could be saved if the notice issue was settled informally and the lawyers moved straight to working out if PH's earlier conviction was going to be brought up at the trial.

[Imalawman]

Demosthenes,

I cannot help be interested in seeing how this unfolds.

Obviously, I have no legal training and I know very little about court procedures or jurisdictional matters but....

If the Federal Rules of Evidence do not apply in this district court setting, would not a competent attorney in that area already know that?

Once again, I trying pick up on the nuances here, but is quoting the Federal Rules in support of the defendant's motion another attempt at stalling?

I'm not a criminal lawyer, but basically, this motion can only be granted when the defense and prosecutor cannot agree on what the gov't will provide to them ahead of trial. The attorney did not state that there was a conference to discuss this issue and thus the court would not grant this motion - yet. The motion may still be granted if the gov't refuses to provide any evidence.

It is a little sloppy, but not evidence of incompetence in the least. It is most definitely not a stalling technique. If I were Hendrickson's lawyer I would be wanting that same information.

[Quixote]

Would PH's reference to his prison time in the introduction to CTC be evidence of other crimes, i.e., would it fall under 404(b)?

[notorial dissent]

Just my 2 ½ cents worth, but if I were Pete’s lawyer, I would be far and away more worried about what Pete is likely to say or write at any given time that will only add more weight to an already sinking ship.

Since he has already single handedly handed the gov’t more than sufficient proof by his own actions and shown intent and action with his website and public utterances, I don’t see how they can not expect the book and conviction to come in to play at some juncture, although with what the gov’t should have, they should have enough dispositive evidence to prove their case that the rest should only be needed to prove prior history and back it up with prior bad acts and to show that there was no innocent misunderstanding or confusion involved.

I really do feel sorry for Pete’s attorney, she has a client who won’t and hasn’t kept his mouth shut, and who has enough ego that I’m betting it won’t let him claim to have made a mistake.

I’m still also betting on the current lawyer not making it through the trial, either being fired or quitting in disgust with her client before it is all over with.

[ClobberroTestii]

I make the following observations:
1. No where does the rule contemplate that a request for discovery has to be made by motion;
2. The defendant's motion papers do not evidence a direct request to the prosecutor for the subject information;
3.It seems to me that the proper course would be to ask the prosecutor directly, by letter or otherwise, for the discovery and then, after not receiving same, confer with the prosecutor about a motion to compel him to produce.

[Famspear]

This just in....docket entry 16 on 9 January 2009:

RENEWED AND CLARIFIED MOTION FOR NOTICE FROM THE GOVERNMENT REGARDING 404(B) EVIDENCE

Defendant, Peter Hendrickson, by his attorney, Ellen Dennis, renews and clarifies the motion to this Honorable Court, pursuant to Fed. R. Evid. 404(b), to enter an Order requiring the government to provide notice of any evidence that it will seek to rely upon at trial which falls within the perimeters of Fed. R. Evid. 404(b), and in support states:

1. On January 6, 2009, counsel for Defendant spoke to Assistant United States Attorney Michael Leibson and asked him whether the government intended to offer certain evidence contained in the discovery under Rule 404(b) because, if so, Defendant intended to file a Motion in Limine seeking exclusion of the evidence. AUSA Leibson stated that he did not know whether the government would be seeking to introduce the evidence. AUSA Leibson suggested that Defendant file a standard motion requesting notice of any 404(b) evidence. For that reason, Defendant is filing this motion.

2. Defendant is charged in ten counts with filing false income tax return documents, in violation of 26 U.S.C. § 7206.

3. Mr. Hendrickson believes that the government may attempt to introduce other acts evidence in its case-in-chief pursuant to Rule 404(b).

4. Mr. Hendrickson also believes that unless the government's similar acts evidence is disclosed prior to trial he will be unduly prejudiced and his right to a fair trial undermined.

5. Under Fed. R. Evid. 404(b), the government must provide pretrial notice of any and all acts evidence it intends to use at trial. That notice must be sufficiently specific to permit pretrial resolution of admissibility questions and the government's duty to disclose is ongoing. See United States v. Barnes, 49 F.3d 1144, 1148-1149 (6th Cir. 1995). If the notice requirement is not met, the evidence is not admissible. Id.

6. Pretrial disclosure will assist this Court in making pretrial determinations on admissibility and would therefore avoid prejudice to Mr. Hendrickson, jury confusion and undue delay in the trial.

7. Pretrial disclosure is required by Fed. R. Evid. 404(b) upon request of defendant.
WHEREFORE, Defendant moves this Honorable Court to enter an order requiring the
government to provide specific and reasonable notice, in advance to trial, of any evidence it may intend to rely upon at trial pursuant to Fed. R. Evid. 404(b);so that Defendant may file a Motion in Limine to exclude the evidence before trial.

Respectfully submitted,
/s/Ellen Dennis (P-24400)
Law Office of Ellen Dennis
Attorney for Defendant Hendrickson

Dated January 9, 2009

Didn't take legal counsel long to clarify......

There is also a brief. I'll post that separately below.

[Famspear]

Here's the supporting brief by Hendrickson's attorney:

BRIEF IN SUPPORT OF MOTION FOR NOTICE FROM THE GOVERNMENT REGARDING 404(b) EVIDENCE

I.

Law and Argument :

Pursuant to Fed. R. Evid. 404(b), Mr. Hendrickson requests that the government provide pretrial disclosure of its intent to introduce other acts evidence at trial. Mr. Hendrickson further requests that the government disclose the nature of the other acts evidence it will seek to introduce at trial, with sufficient specificity to allow pretrial rulings on its' admissibility. This request is designed to prevent timeconsuming and potentially prejudicial contests over admissibility before the jury. It is also designed to give Mr. Hendrickson a fair opportunity to prepare for trial and challenge the admissibility of the evidence.

Fed. R. Evid. 404(b) provides that, upon request, the government "shall" provide the defendant with notice of the use of similar act evidence in advance of trial:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

(Emphasis added).

The government has a continuing duty to comply with the notice requirement of Rule 404(b)
whenever it discovers evidence that meets the request. If the notice requirement is not met, the evidence is not admissible. See United States v. Barnes, 49 F.3d 114, 1148 (6th Cir. 1995).

The government's notice must identify the specific nature of the other acts evidence to allow the Court to make pretrial determinations on the admissibility of the evidence. As the Barnes panel noted, "the government's notice must characterize the prior conduct to a degree that fairly apprises the defendant of its general nature" and it "must be sufficiently clear so as 'to permit pretrial resolution of the issue of admissibility'." United States v. Barnes, at 1148-49. The purpose of the Rule 404(b) notice requirement is to "reduce surprise and promote early resolution on the issue of admissibility", as well as to enhance fairness in criminal trials. Thus, it is imperative that the government specifically identify, before trial, each piece of Rule 404(b) evidence it intends to introduce at trial.

Mr. Hendrickson's request is also rooted in the basic rights to notice of the nature and cause of the accusation, to preparation of one's defense, to confrontation of witnesses, to effective assistance of counsel and to due process of law. These guarantees will be hopelessly frustrated if Mr. Hendrickson does not receive disclosure of the precise other acts evidence until it is offered against him at trial.

The Court, as well as Mr. Hendrickson has a stake in pretrial disclosure of the government's
intention to interject other acts evidence into the trial. Admissibility under Fed. R. Evid. 404(b) and 403 ordinarily raises serious evidentiary questions which may result in undue delay in the proceedings if litigated during the course of the trial. If the government is allowed, without prior disclosure of the specific other acts evidence, to introduce this evidence during trial, mid-trial continuances may be necessary to allow Mr. Hendrickson a fair opportunity to meet the evidence or to raise his objections.

This Court should, therefore, enter an order requiring the government to specify the particular nature of any other acts evidence it intends to rely upon in its case against Mr. Hendrickson and to do so in a timely fashion in advance of trial; so that Defendant may file a Motion in Limine to exclude the evidence before trial.

Respectfully submitted,
/s/Ellen Dennis (P-24400)
Law Office of Ellen Dennis
Attorney for Defendant Hendrickson
101 S. Ann Arbor St., Ste. 203A
Saline, Michigan 48176
Telephone: 734 944-5819
l_den1947@yahoo.com
Dated: January 9, 2009

[Judge Roy Bean]

IMHO Ms. Dennis is offering an appropriately zealous defense. Anticipating prosecutorial rule bending is a fundamental requirement.

[ClobberroTestii]

This just in....docket entry 16 on 9 January 2009:

Didn't take legal counsel long to clarify......

There is also a brief. I'll post that separately below.

I'd say it took long enough! Do you BAR attorneys accept this as a trivial blunder?

[Famspear]

This just in....docket entry 16 on 9 January 2009:

Didn't take legal counsel long to clarify......

There is also a brief. I'll post that separately below.

I'd say it took long enough! Do you BAR attorneys accept this as a trivial blunder?

Accept what as a "trivial blunder"? Look at the dates on the filings. All this started on Tuesday. This is Friday.

A minor glitch.

[ClobberroTestii]

This just in....docket entry 16 on 9 January 2009:



Didn't take legal counsel long to clarify......

There is also a brief. I'll post that separately below.

I'd say it took long enough! Do you BAR attorneys accept this as a trivial blunder?

Accept what as a "trivial blunder"? Look at the dates on the filings. All this started on Tuesday. This is Friday.

A minor glitch.

Doesn't matter what the dates are. The attorney made a sloppy and unforgivable FU.

[Famspear]

A "sloppy and unforgivable FU"? Really? Clobberro, I realize that you have your opinion, but in my opinion you're lacking some perspective.

glitch - "a minor technical problem"

--Webster's New Collegiate Dictionary, p. 489, G.&C. Merriam Company (8th ed. 1976).

blunder - "a gross error or mistake resulting usu. from stupidity, ignorance, or carelessness"

--Webster's New Collegiate Dictionary, p. 122, G.&C. Merriam Company (8th ed. 1976).

So, here's the hierarchy:

1. blunder - really bad

2. minor blunder - bad, but not so bad, you know

3. trivial blunder - even less bad

4. glitch - not even really as bad as a trivial blunder

5. minor glitch - most definitely not nearly so bad as a glitch, and nowhere near anything as bad as a trivial blunder

6. trivial glitch - don't even mention it.

[ClobberroTestii]

A "sloppy and unforgivable FU"? Really? Clobberro, I realize that you have your opinion, but in my opinion you're lacking some perspective.

glitch - "a minor technical problem"

--Webster's New Collegiate Dictionary, p. 489, G.&C. Merriam Company (8th ed. 1976).

blunder - "a gross error or mistake resulting usu. from stupidity, ignorance, or carelessness"

--Webster's New Collegiate Dictionary, p. 122, G.&C. Merriam Company (8th ed. 1976).

So, here's the hierarchy:

1. blunder - really bad

2. minor blunder - bad, but not so bad, you know

3. trivial blunder - even less bad

4. glitch - not even really as bad as a trivial blunder

5. minor glitch - most definitely not nearly so bad as a glitch, and nowhere near anything as bad as a trivial blunder

6. trivial glitch - don't even mention it.

From my perspective, I see a defendant denied competent and effective counsel because a professional attorney failed to abide by a simple local rule, a rule no doubt designed to conserve the resources of the court, and thereby waste precious time on the eve of the deadline for all pretrial motions. What could be lacking from such a perspective?

[Famspear]

From my perspective, I see a defendant denied competent and effective counsel because a professional attorney failed to abide by a simple local rule, a rule no doubt designed to conserve the resources of the court, and thereby waste precious time on the eve of the deadline for all pretrial motions. What could be lacking from such a perspective?

Clobberro, what could be lacking from your perspective is a sense of proportion. You seem to feel that Hendrickson has been "denied competent and effective counsel" merely because his counsel failed to "abide by a simple local rule," etc., as you put it.

[ClobberroTestii]

From my perspective, I see a defendant denied competent and effective counsel because a professional attorney failed to abide by a simple local rule, a rule no doubt designed to conserve the resources of the court, and thereby waste precious time on the eve of the deadline for all pretrial motions. What could be lacking from such a perspective?

Clobberro, what could be lacking from your perspective is a sense of proportion. You seem to feel that Hendrickson has been "denied competent and effective counsel" merely because his counsel failed to "abide by a simple local rule," etc., as you put it.

I think you're catching on!

[Famspear]

From my perspective, I see a defendant denied competent and effective counsel because a professional attorney failed to abide by a simple local rule, a rule no doubt designed to conserve the resources of the court, and thereby waste precious time on the eve of the deadline for all pretrial motions. What could be lacking from such a perspective?

Clobberro, what could be lacking from your perspective is a sense of proportion. You seem to feel that Hendrickson has been "denied competent and effective counsel" merely because his counsel failed to "abide by a simple local rule," etc., as you put it.

I think you're catching on!

No, I'm not "catching on." I'm way ahead of you.